Mr. James M. Swift, Attorney General of Massachusetts, and Mr. Walter A. Powers, Assistant Attorney General, for defendant in error.

[Argument of Counsel from pages 170-172 intentionally omitted]

Mr. Justice Lurton delivered the opinion of the court:

1

The plaintiff in error was convicted of the crime of murder in the first degree and sentenced to death, and the judgment was affirmed by the supreme judicial court of the commonwealth of Massachusetts. The case is brought here upon a single question; namely, that the plaintiff in error has been denied due process of law under the 14th Amendment, because he was tried by a jury which included one Willis A. White, concerning whose sanity it is said there existed reasonable doubt.

2

The jury had been selected in the usual way, and White had been accepted without knowledge by the state or the defendant of any question concerning his mental fitness. It was impaneled on April 20, 1909. On May 4 it was charged, and on the same day returned a verdict. On May 10, a motion for a new trial was made, based upon the suggestion by counsel for the prisoner that the juror White, during the hearing and at the time the verdict was agreed upon, was insane and incompetent to participate as a juror. The motion was heard by two of the trial justices of the superior court, and much oral evidence bearing upon the sanity of the juror was introduced, all of which has been preserved by a bill of exceptions. At the conclusion of the evidence the prisoner presented no less than seventy-two requests for rulings and findings, made part of the record. The court found and ruled as follows:

3

'We find by a fair preponderance of all the evidence as a fact that the juror Willis A. White was of sufficient mental capacity during the entire trial of Chester S. Jordan until after the verdict was returned, to intelligently consider the evidence, appreciate the arguments of counsel, the rulings of law, the charge of the court, and to arrive at a rational conclusion, and therefore we deny the motion.

4

'Having found the above fact, we deem it unnecessary to consider the requests for rulings.' [207 Mass. 274, 93 N. E. 809.]

5

The numerous requests for rulings and special findings all relate to the burden of proof and the rules for the weighing of evidence upon the issues presented.

6

The supreme judicial court, after a consideration of the evidence upon which this finding was based, ruled that it could not be said that there was not evidence warranting the conclusion of the trial judges.

7

We shall assume that both the trial court and the supreme judicial court have sustained the verdict of the jury because they were of opinion that it was not essential that the sanity of the juror under the circumstances of this case should be established by more than a fair preponderance of the evidence. The insistence is that thereby the constitutional guaranty of due process of Iaw, found in the 14th Amendment, has been violated.

8

That the procedure in this case was in conformity with the Constitution and law of Massachusetts is determined by the judgment and opinion of the supreme judicial court.

9

Subject to the requirement of due process of law, the states are under no restriction as to their method of procedure in the administration of public justice. That the court had jurisdiction and that there was a full hearing upon the issue made by the suggestion of the insanity of the juror is not questioned. 'Subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law, . . . this court has, up to this time, sustained all state laws, statutory or judicially declared, regulating procedure, evidence, and methods of trial, and held them to be consistent with due process of law.' Twining v. New Jersey, 211 U. S. 78, 111, 53 L. ed. 77, 111, 29 Sup. Ct. Rep. 14.

'Without attempting to define exactly in what due process of law consists, it is sufficient to say that, if the supreme court of a state has acted in consonance with the constitutional laws of a state and its own procedure, it could only be in very exceptional circumstances that this court would feel justified in saying that there had been a failure of due legal process. We might ourselves have pursued a different course in this case, but that is not the test. The plaintiff in error must have been deprived of one of those fundamental rights, the observance of which is indispensable to the liberty of the citizen, to justify our interference.'

12

In Felts v. Murphy, 201 U. S. 123, 50 L. ed. 689, 26 Sup. Ct. Rep. 366, it appeared that a deaf person was tried and convicted of murder. It was claimed that he had been denied due process of law because he had not heard a word of the evidence, and that the evidence should have been repeated to him through an ear trumpet, although it was not clear that he could have been made to understand by that means. After saying that the state court had jurisdiction of the person and of the subjectmatter, this court said:

13

'The appellant was not deprived of his liberty without due process of law by the manner in which he was tried, so as to violate the provisions of the 14th Amendment to the Federal Constitution. That Amendment, it has been said by this court, 'did not radically change the whole theory of the relations of the state and Federal governments to each other and of both governments to the people.' Re Kemmler, 136 U. S. 436, 448, 34 L. ed. 519, 524, 10 Sup. Ct. Rep. 930; Brown v. New Jersey, 175 U. S. 172, 175, 44 L. ed. 119, 120, 20 Sup. Ct. Rep. 77.

14

'We are unable to see how jurisdiction was lost in this case by the manner of trial. The accused was compos mentis. No claim to the contrary is made. He knew he was being tried on account of the killing of the deceased. He had counsel and understood the fact that he was on trial on the indictment mentioned, but he did not hear the evidence. He made no objection, asked for nothing, and permitted his counsel to take his own course. We see no loss of jurisdiction in all this and no absence of due process of law. It is to be regretted that the testimony was not read or repeated to him. But that omission did not affect the jurisdiction of the court.'

15

In Louisville & N. R. Co. v. Schmidt, 177 U. S. 230, 236, 44 L. ed. 747, 750, 20 Sup. Ct. Rep. 620, it was said: 'It is no longer open to contention that the due process clause of the 14th Amendment to the Constitution of the United States does not control mere forms of procedure in state courts or regulate practice therein. All its requirements are complied with, provided in the proceedings which are claimed not to have been due process of law the person condemned has had sufficient notice, and adequate opportunity has been afforded him to defend. Iowa C. R. Co. v. Iowa, 160 U. S. 389, 40 L. ed. 467, 16 Sup. Ct. Rep. 344; Wilson v. North Carolina, 169 U. S. 586, 42 L. ed. 865, 18 Sup. Ct. Rep. 435.

16

Due process implies a tribunal both impartial and mentally competent to afford a hearing. But to say that due process is denied when a competent state court refuses to set aside the verdict of a jury because the sanity of one of its members was established by only a preponderance of evidence would be to enforce an exaction unknown to the precedents of the past, and an interference with the discretion and power of the state not justified by the demands of justice, nor recognized by any definition of due process.

17

In criminal cases due process of law is not denied by a state law which dispenses with a grand jury indictment and permits prosecution upon information, nor by a law which dispenses with the necessity of a jury of twelve, or unanimity in the verdict. Indeed, the requirement of due process does not deprive a state of the power to dispense with jury trial altogether. Hurtado v. California, 110 U. S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292; Maxwell v. Dow, 176 U. S. 581, 44 L. ed. 597, 20 Sup. Ct. Rep. 448, 494. When the essential elements of a court having jurisdiction in which an opportunity for a hearing is afforded are present, the power of a state over its methods of procedure is substantially unrestricted by the due process clause of the Constitution.

18

Touching the power of the states over their procedure for the administration of their police power, Mr. Justice Moody, in Twining v. New Jersey, cited above, said: 'The power of their people ought not to be fettered, their sense of responsibility lessened, and their capacity for sober and restrained self-government weakened by forced construction of the Federal Constitution. If the people of New Jersey are not content with the law as declared in repeated decisions of their courts, the remedy is in their own hands.'

19

The proceeding here in question was in absolute conformity to the Massachusetts law of criminal procedure, and no fundamental principle of justice was violated by a determination of the mental capacity of the juror by a preponderance of the evidence. Neither is there any established rule of the common law inconsistent with the practice adopted in this case. There are many decisions in accord with the Massachusetts view of the law, among them being: State v. Scott, 8 N. C. (1 Hawks) 24; Burik v. Dundee Woolen Co. 66 N. J. L. 420, 49 Atl. 442; State v. Howard, 118 Mo. 127, 24 S. W. 41; Surles v. State, 89 Ga. 167, 15 S. E. 38.

20

In Hogshead v. State, 6 Humph. 59, the supreme court of Tennessee held that the trial court erred in not granting a new trial when it appeared 'probable' that a juror was insane. But in Tennessee the denial of a new trial is assignable as error and reversible upon writ of error.

21

Our conclusion is that the plaintiff in error has not been denied due process of law, and the judgment is affirmed.

22

Mr. Justice Pitney took no part in the hearing or consideration of this case.